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Gounder v State [2012] FJCA 89; AAU0077.2011 (30 November 2012)

IN THE COURT OF APPEAL
On Appeal from the High Court

Criminal Appeal No. AAU 0077 of 2011
[High Court Action No. HAC 94 of 2010]

BETWEEN:

GANESH GOUNDER
Applicant

AND:

THE STATE
Respondent

Counsel: Mr. I Khan for the Applicant
Ms. Puamau for the Respondent

Date of Hearing : 31 October 2012
Date of Ruling : 30 November 2012

RULING

[1] This is an application for leave to appeal dated 29 August 2011 filed against the Judgment dated 18 August 2011. The accused applicant (accused) was indicted in the High Court at Lautoka under section 207 (1), (2) (a) of the Crimes Decree No. 44 of 2009 for having carnal knowledge of Ema Batiluva without her consent.

[2] The accused was tried before a Judge and three Assessors and was convicted after the Assessors found the accused guilty. The accused was sentenced to 12 years imprisonment with a minimum period of 9 years before parole.

[3] The learned counsel submitted that the evidence presented in court demonstrated that the evidence of the complainant did not support her allegation of rape.

[4] The learned counsel further submitted that the learned trial Judge erred in law in not adequately putting the defence case to the Assessors. The learned counsel further submitted that the learned trial Judge erred in law in not adequately analysing the evidence that was against the applicant.

[5] It is not disputed that the accused had sexual intercourse with the girl who was 14 years of age. The only dispute in this case relates to her consent.

[6] The learned counsel submitted in detail the events that occurred before and after sexual intercourse on 9 August 2010. According to the learned counsel the girl had met the accused before. On the day in question the girl had contacted the accused with a text message.

[7] The girl had been living in Nadi and the accused in Lautoka. At the invitation of the accused the girl had travelled from Nadi to Lautoka at the expense of the accused. After meeting they had spent some time together and had gone to a hotel where they had sex.

[8] After some time the accused had taken her to Nadi in a hired van and returned to Lautoka. The girl had come to Lautoka later on and spent time with the accused till about 7 p.m.

[9] The learned counsel submitted that none of these facts which favours the accused had not been put to the Assessors for consideration. The learned counsel submitted that the learned Judge completely failed to give a summary of evidence and also failed to analyse the evidence to the Assessors.

[10] The learned Judge in the summing up in paragraph 15 states that "
it has been a very short trial and I don't propose to go over the evidence. It will still be fresh in your mind".

[11] The learned counsel for the Respondent did not controvert the facts and the submissions of the learned counsel for the accused.

[12] Considering the above material I am of the view that there are arguable matters that would justify granting leave. Hence leave to appeal is granted.

Order

[13] The order of the Court is:

(1) Leave to appeal against conviction granted.

Eric L. Basnayake
Justice of Appeal